In the Circuit Court of the Twelfth Judicial Circuit in and for Sarasota County, Florida
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Filing # 14355865 Electronically Filed 06/03/2014 11:33:02 AM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC., and MICHAEL BARFIELD, Petitioners, v. Case No. 2014-CA-_________ CITY OF SARASOTA, and MICHAEL JACKSON, Respondents. _______________________________________/ VERIFIED EMERGENCY MOTION FOR TEMPORARY INJUNCTION AND INCORPORATED MEMORANDUM OF LAW Petitioners, through counsel, and pursuant to Fla. R. Civ. P. 1.610, file this emergency motion for temporary injunction seeking to enjoin the City of Sarasota and Michael Jackson from disposing of records in contravention of § 119.07(1)(h), Fla. Stat., and to require certain records to be filed under seal with the Clerk of the Court. In support, Petitioners would show the following: Introduction 1. This is an action seeking a writ of mandamus to compel the production from Detective Michael Jackson of the Sarasota Police Department of public records related to the application for and orders approving the using of Stingray devices. In an effort to shield records relating to a controversial tool used to spy on Floridians without a warrant, the City and Detective Jackson transferred public records to the federal government within days after Petitioners’ records request and despite the clear statutory command under § 119.07(1)(h) to preserve records in their possession pending the Court’s determination of this controversy. The transferred records also constitute court or judicial records and included applications and orders submitted to a state court judge without any copies provided to the Clerk of the Court or otherwise retained by the judiciary. To prevent additional records from being disposed of or transferred, emergency relief is necessary. Facts 2. Respondent, CITY OF SARASOTA, (“City”), is a Florida municipal corporation. The Sarasota Police Department (“SPD”) is an administrative agency of the City. 3. Respondent, MICHAEL JACKSON, (“Detective Jackson”), is a detective employed at SPD and has possession of certain records sought by Petitioners. 4. In connection with the transaction of official agency business of SPD, Detective Jackson has made or received certain records relating to applications tendered to the Circuit Court of the Twelfth Judicial Circuit, in and for Sarasota County, for judicial orders to be entered pursuant to the provisions of §§ 934.32 and 934.33, Fla. Stat. (“the records” or “requested records”). 5. Based on information and belief, the records are titled “Application Under Seal” and seek authorization from a judge of the Twelfth Judicial Circuit for the installation and use of a pen register and a trap and trace device. 6. Based on information and belief, orders authorizing the use of a trap and trace device are utilized by law enforcement officers, including Detective Jackson, to collect information in criminal investigations, including, but not limited to, cell phone records and cell site information both historical and prospectively in real-time. 7. In addition, trap and trace orders are used to obtain authority to use another device known as a cell site simulator, or “Stingray,” to conduct live location tracking of cell phones, 2 collect identifying information about cell phones including their electronic serial numbers, and intercept certain information pertaining to cell phone communications. 8. Stingray devices are manufactured and sold to law enforcement agencies by the Melbourne, Florida, based Harris Corporation. Stingrays mimic cell service providers’ towers and broadcast electronic signals that force cell phones in the area to register their identifying information and location. Stingrays collect information not only about specific targets of investigations, but also about hundreds or thousands of innocent third parties. 9. Based on information and belief, the records are never filed with the Clerk of the Court or retained by any judicial officer. Rather, Detective Jackson maintains exclusive physical custody and control of the records at SPD. 10. On May 19, 2014, Barfield made a request of SPD for records relating to cell phone tracking and sought the following records: a. Any records made or received by SPD related to the use of cell phone tracking equipment, including, but not limited to, any device known as Stingray or Stingray II; b. All email communications concerning the use of cell phone tracking equipment, including, but not limited to, any device known as Stingray or Stingray II; c. Any record relating to equipment or electronic devices used to track or locate cell phones, including, but not limited to, any device known as Stingray or Stingray II; d. Any purchase orders or financial transactions related to the purchase of cell phone tracking equipment, including, but not limited to, purchases or lease agreements from the Harris Corporation, its agents or subsidiaries; e. Any record indicating that cell phone tracking equipment, including, but not limited to any device known as Stingray or Stingray II; and f. Any non-disclosure agreement between the SPD and any entity relating to cell phone tracking equipment, including, but not limited to, any device known as Stingray or Stingray II. 3 See Exhibit 1, attached hereto. 11. On or about May 22, 2014, Mr. Barfield contacted Detective Jackson and requested an appointment to inspect records in his possession relating to cell phone tracking, including the trap and trace applications and orders. 12. Detective Jackson acknowledged to Mr. Barfield that he had sole possession, custody and control of the trap and trace applications and orders and scheduled an appointment for Mr. Barfield to inspect same at SPD on Tuesday, May 27, 2014, at 2:30 p.m. 13. On Tuesday, May 27, 2014, just a few hours before the scheduled inspection of the records, Assistant City Attorney Eric Werbeck sent Mr. Barfield an email stating that a federal agency instructed the City not to release the requested records because any “trap and trace” orders kept by Detective Jackson were pursuant to his duties as a Special Deputy with the U.S. Marshal’s Service. See Exhibit 2, attached hereto. 14. On May 28, 2014, Mr. Barfield requested Mr. Werbeck to comply with the provisions of § 119.07(1)(h), Fla. Stat., to maintain the records until such time as a court of competent jurisdiction could determine whether or not the records are public records subject to inspection under Chapter 119. See Exhibit 3, attached hereto. 15. In a telephone conversation with Mr. Barfield on May 28, 2014, and again on May 29, 2014, Mr. Werbeck stated that he could not guarantee that the requested records would be maintained exclusively in the custody of Detective Jackson or that the provisions of § 119.07(1)(h), Fla. Stat., apply to the records. 16. § 119.07(1)(h) provides as follows: Even if an assertion is made by the custodian of public records that a requested record is not a public record subject to public inspection or copying under this subsection, the requested record shall, nevertheless, not be disposed of for a 4 period of 30 days after the date on which a written request to inspect or copy the record was served on or otherwise made to the custodian of public records by the person seeking access to the record. If a civil action is instituted within the 30-day period to enforce the provisions of this section with respect to the requested record, the custodian of public records may not dispose of the record except by order of a court of competent jurisdiction after notice to all affected parties. 17. § 119.07(1)(h) is absolute and the City and Detective Jackson have no discretion in complying with its explicit terms. Even if the records are not considered “public records” within the meaning of Chapter 119, there is a duty not to dispose of the records once a request has been to the custodian. 18. On or about May 30, 2014, the City notified Petitioners that a federal agency had physically moved the records in Detective Jackson’s possession from Sarasota to an unknown location. See Exhibit 4, attached hereto. 19. In a second email dated May 30, 2014, the City sought clarification on the remaining records identified in response to the original May 19th request.1 See Exhibit 5, attached hereto. 20. Based on information and belief, the City and Detective Jackson have possession of digital records relating to the trap and trace applications. For example, when Detective Jackson drafted any applications and proposed orders, SPD’s servers would likely retain an electronic version of the documents. Additionally, when Detective Jackson sent a signed order to any cell phone service provider, the record would have been transmitted via email or facsimile. The transmission via email or facsimile would remain on SPD’s servers or Detective Jackson’s individual computer. 21. Petitioners reasonably believe that if the City or Detective Jackson identify any additional records relating to the Stingray technology or trap and trace applications and orders 1 As indicated in the email, the original records request was supplemented with keyword search terms. 5 submitted to a state court judge, they will notify the federal government, who will again take custody of public records as well as judicial court records not maintained anywhere else. 22. Under these circumstances, there is a legitimate concern that any additional records identified in response to Petitioners’ records request will be transferred to the custody of federal agents before this Court makes a determination of whether they are or are not a public record or alternatively, a court or judicial record. 23. The applications and orders submitted to a judge under §§ 934.32 and 934.33, Fla. Stat., are records of the judicial branch within the meaning of Fla. R. Jud. Admin. Rule 2.420(1). 24. The proper custodian of records of the judicial branch is the Clerk of Court pursuant to § 28.13, Fla.